Politicizing Crime, the OPR Report and the Degeneracy of the Ruling Elite

"Know thou this, that men are as the time is." -- Shakespeare

In an excellent post at Inside-Out the Beltway on the controversy over the shameless refusal by the U.S. Department of Justice to formally charge former Bush-era torture memo attorneys John Yoo and Jay Bybee with professional misconduct for their work in legitimating torture on behalf of the U.S. military and CIA, Chris in DC makes a very, very important point in a response to one of his commenters (bold emphasis added):

Cetamua asked whether future administrations could prosecute Cheney and others for war crimes even if this one doesn't. I replied that this was theoretically possible (many of these crimes have no statute of limitations), but that the problem with delaying any kind of accountability for high-level misconduct is that, as time passes, the misconduct is seen as condoned by society and thus becomes much more difficult to punish.

This is especially the case where, as here, the establishment mantra throughout that time is that prosecuting the conduct is "criminalizing politics" (when, in fact, the precise opposite is happening: politicizing crime). In fact, establishment acceptance of this cynical distortion is even more harmful than mere reluctance or refusal to prosecute, because framing the criminal activity in a purely political context allows it to become openly advocated in mainstream forums by the political factions that most benefit from a failure to prosecute (e.g., Dick Cheney).

The outcome, then, of the politicization of crime caused by the "criminalizing politics" meme is that the debate shifts from whether the activity is reprehensible and punishable to whether the activity is smart and desirable. Hence, we see the continuing, unashamed arguments from right-wingers not only that brutal torture is not a crime (when done by or for the United States), but that torture is in fact wise and imperative national security policy, with its opponents cynically cast as weak and unserious for even suggesting otherwise.

This is why you cannot play games with matters as severe as these. Backing away from the only morally and legally sane response to war crimes - full criminal investigation and prosecution - is not a "trans-partisan" invitation to politely overcome the rancor and monstrousness of the past, it is the crucial first step to normalization and continuation of that same monstrousness and criminality.

While many will look at the legal aspects of the case, at the Congressional investigations supposedly to follow, etc., the overwhelming effect of reading the Office of Professional Responsiblity (OPR) material (see, for instance, Emptywheel's site, where Marcy Wheeler and a number of associates are dissecting the various components of the OPR report) is of a totally bankrupt, politically criminal government. These people operate at the moral level of an Eichmann. They are infected with the virus of torture, which in its later stages, metastasizes into feelings of omnipotence, delusions of grandeur, malignant narcissism, and outright sociopathy.

I don't believe I've seen such depictions of moral depravity at a fundamental level since the shenanigans of the distaff state of Salò.

Meanwhile, much of the population believes that Barack Obama, Eric Holder, and their associates are somehow going to change all this, even as they have taken clear steps -- not least placing David Margolis in charge of defanging the OPR report (which is from my standpoint underplayed anyway... letting Stephen Bradbury off, for instance) -- to make sure none of the governmental and military/intelligence criminals are ever held to account.

This failure to hold people accountable because the extent of U.S. criminality and illegal actions would become known has poisoned all political action in Washington, and no doubt extends to other components of government, and other issues (as in the recent failure to pass substantive health care reform).

The OPR report is a symptom of the extreme reactionary content of these political times. It is a gauntlet thrown down to the society at large. Are we really what these criminals represent? How can the mainstream press be so morally obtuse that they are not screaming about this from day one? What use a society such as this?

Links (h/t Emptywheel):

• Memorandum for the Attorney General
• OPR Final Report (a searchable copy, courtesy of burnt, is here)
• OPR 1st Draft Report (a searchable copy, courtesy of burnt, is here)
• OPR 2nd Draft Report
• Yoo Response to OPR 2nd Draft
• Yoo Response to OPR Final Draft
• Bybee Response to OPR 2nd Draft
• Bybee Response to OPR Final Draft

See also Jack Balkin's Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway, and Jason Leopold, DOJ Report on Torture Memo: Yoo Said Bush Could Order "Massacre" of Civilians.

Update -- from David Swanson's Yoo, Bybee and Disinformation (I thought this worth quoting at length, especially since I agree with David's suggestions about what to do now):

Everything you're reading about torture lawyers John Yoo and Jay Bybee getting off the hook is wrong. They are not torture lawyers, they are not off the hook, there never was any hook, they may not be lawyers for long, impeachment and indictment are on the agenda, and you have a role to play.

Calling these men "torture lawyers" is dramatically dumber than labeling Al Capone a tax cheat. These are people who provided "legal" cover for aggressive wars, who put down in documents treated as secret "laws" that any president can launch any aggressive war at his whim, without regard to domestic or international law, Congress, the Supreme Court, you, me, or morality. The very report that is the subject of the latest "news" flurry quotes Yoo declaring that, "Sure!", a president can order a village massacred....

Yoo and Bybee are openly guilty of conspiracy to engage in aggressive war, banned by the U.N. Charter and Article VI of the U.S. Constitution, and of conspiracy to torture, a felony under 18 U.S.C. § 2340A-c and § 2441, and to spy without warrants, banned by the Fourth Amendment. Their memos are public. The fact that everyone waited for years to do anything about it, until they could see the Justice Department's own report on the matter doesn't change the absolute irrelevance of such nonsense. Yoo's and Bybee's actions, no matter what you make of them, consist entirely in authorship of a series of written documents available for all to read. And those documents constitute overwhelming grounds for impeachment and indictment....

The report concludes that these war lawyers "committed intentional professional misconduct". The fact that some schmuck in the DOJ adds a note saying that they don't really mean it, doesn't change the fact that any institution in which Yoo's and Bybee's behavior did not constitute misconduct would need to be destroyed in its entirety beginning with actions to newly identify as unacceptable Yoo's and Bybee's crimes. And that they are crimes is not really impacted by whether or not they are "misconduct".

Of course the war lawyers can and must be disbarred, and you can help at http://disbartorturelawyers.com

Senator Patrick Leahy and Congressman John Conyers understand the need to at least pretend that they are not taking their orders from an agency conducting a transparent fraud.... the reports are now public and the fraud out in the open. But Leahy is asking Bybee to resign, Conyers is avoiding the word "impeachment," and neither one of these gentlemen -- stand-out frauds in their own rights -- is talking about subpoenas.

Two things are needed here. First, we need to deter ongoing crime through punishment....

Second we need to find a way for the public to re-enter our government and gain some modicum of control over what it does. That is going to require restoring powers to Congress, and that is going to require at least one committee at the very least enforcing its own subpoenas through the Capitol Police force, if not the Congress impeaching and removing from office someone who used to work in the so-called executive branch. There is a campaign building pressure to demand Bybee's impeachment at http://impeachbybee.org

The Justice Department has been publicly and lawlessly ordered by the president not to enforce laws against the war lawyers. The threat of the DOJ issuing an official recommendation of disbarment does not exactly qualify as a hook (to be let off of). Nor does impeachment, although it serves the critical purpose of shifting power back to Congress, sufficiently deter ongoing crimes. What's going to be needed in the end is prosecution. But that's going to have to come through massive public pressure and intense pressure from Congress, from abroad, and from a strengthened independent communications system.